OpenLegislation

The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010

S.I. 2010/813 · Made 15 March 2010 · Extends to United Kingdom

Up to date with all changes known to legislation.gov.uk, revised to 1 December 2020.

National Health Service

Public Health

Social Care

Made 15th March 2010

Coming into force 1st October 2010

The Secretary of State makes the following Order in exercise of the powers conferred by sections 161(3) and (4) and 167 of the Health and Social Care Act 2008f1.

A draft of this Order was laid before Parliament in accordance with section 162(3) of the Health and Social Care Act 2008 and approved by resolution of each House of Parliament.

Annotations to the whole text

Footnotes

f1

2008 c. 14.

Contents

  1. 1Citation, commencement and extent
  2. 2Amendment of the National Assistance Act 1948
  3. 3Amendments of the Prison Act 1952
  4. 4Amendments of the Greater London Council (General Powers) Act 1981
  5. 5Amendments of the Mental Health Act 1983
  6. 6Amendments of the Greater London Council (General Powers) Act 1984
  7. 7Amendments of the Children Act 1989
  8. 8Amendment of the National Health Service and Community Care Act 1990
  9. 9Amendment of the Local Government Finance Act 1992
  10. 10Amendments of the Powers of Criminal Courts (Sentencing) Act 2000 Repealed
  11. 11Amendment of the Community Care (Delayed Discharges etc) Act 2003
  12. 12Amendments of the Licensing Act 2003
  13. 13Amendments of the Sexual Offences Act 2003
  14. 14Amendments of the Criminal Justice Act 2003 Repealed
  15. 15Amendment of the Health Protection Agency Act 2004
  16. 16Amendment of the Income Tax (Trading and Other Income) Act 2005
  17. 17Amendments of the Mental Capacity Act 2005
  18. 18Amendment of the Childcare Act 2006
  19. 19Amendments of the Safeguarding Vulnerable Groups Act 2006
  20. 20Amendments of the Criminal Justice and Immigration Act 2008 Repealed
  21. Signature
  22. Explanatory note

1Citation, commencement and extentI1

(1)

This Order may be cited as the Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 and comes into force on 1st October 2010.

(2)

The amendment of any provision by this Order has the same extent as the provision being amended.

2Amendment of the National Assistance Act 1948I1

In section 26 of the National Assistance Act 1948 (provision of accommodation in premises maintained by voluntary organisations)f1, in subsection (1A)(b), for the words from “person” onwards substitute—

“person—

(i)

in the case of a home in England, is registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of a regulated activity (within the meaning of that Part) carried on in the home, or

(ii)

in the case of a home in Wales, is registered under Part 2 of the Care Standards Act 2000 in respect of the home.”.

3Amendments of the Prison Act 1952I1

In Schedule A1 to the Prison Act 1952 (further provision about Her Majesty’s Chief Inspector of Prisons)f1, in paragraph 4 (co-operation), omit paragraphs (f) and (g) (which relate to the Commission for Healthcare Audit and Inspection and the Commission for Social Care Inspection).

4Amendments of the Greater London Council (General Powers) Act 1981I1

(1)

In section 16 of the Greater London Council (General Powers) Act 1981 (exemption for certain purposes)f1—

(a)

in paragraph (g), omit “, or an independent hospital,”; and

(b)

after paragraph (g) insert—

“(ga)

used—

(i)

as a hospital as defined by section 275 of the National Health Service Act 2006, or

(ii)

for the provision of any of the services listed in subsection (2),

but not used as a health service hospital as defined by section 275 of the National Health Service Act 2006;”.

(2)

Renumber section 16 as so amended as subsection (1) of that section and after that provision insert—

“(2)

The services referred to in subsection (1)(ga)(ii) are as follows—

(a)

medical treatment under anaesthesia or intravenously administered sedation;

(b)

dental treatment under general anaesthesia;

(c)

obstetric services and, in connection with childbirth, medical services;

(d)

termination of pregnancies;

(e)

cosmetic surgery, other than—

(i)

ear and body piercing;

(ii)

tattooing;

(iii)

the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; or

(iv)

the removal of hair roots or small blemishes on the skin by the application of heat using an electric current.”.

5Amendments of the Mental Health Act 1983I1

(1)

The Mental Health Act 1983f1 is amended as follows.

(2)

In section 24 (visiting and examination of patients)f2, in subsection (3)(b), after “Part II of the Care Standards Act 2000” insert “or Part 1 of the Health and Social Care Act 2008”.

(3)

In section 34 (interpretation of Part 2)f3, in subsection (1), for the definition of “registered establishment” substitute—

  • ““registered establishment” means an establishment which would not, apart from subsection (2) below, be a hospital for the purposes of this Part and which—

    1. (a)

      in England, is a hospital as defined by section 275 of the National Health Service Act 2006 that is used for the carrying on of a regulated activity, within the meaning of Part 1 of the Health and Social Care Act 2008, which relates to the assessment or medical treatment of mental disorder and in respect of which a person is registered under Chapter 2 of that Part; and

    2. (b)

      in Wales, is an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000 as an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under this Act;”.

(4)

In section 119 (practitioners approved for Part 4 and section 118)f4—

(a)

in subsection (2)(a), for “establishment of any description” substitute “regulated establishment (other than a hospital)”; and

(b)

for subsection (3) substitute—

“(3)

In this section “regulated establishment” means—

(a)

an establishment in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or

(b)

premises used for the carrying on of a regulated activity, within the meaning of Part 1 of the Health and Social Care Act 2008, in respect of which a person is registered under Chapter 2 of that Part.”.

(5)

In section 145 (interpretation)f5—

(a)

for the definition of “independent hospital” substitute—

  • ““independent hospital”—

    1. (a)

      in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section, and

    2. (b)

      in relation to Wales, has the same meaning as in the Care Standards Act 2000;”; and

(b)

in the definition of “the managers” for paragraph (c) substitute—

“(c)

in relation to a registered establishment—

(i)

if the establishment is in England, the person or persons registered as a service provider under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the regulated activity (within the meaning of that Part) relating to the assessment or medical treatment of mental disorder that is carried out in the establishment, and

(ii)

if the establishment is in Wales, the person or persons registered in respect of the establishment under Part 2 of the Care Standards Act 2000;”.

6Amendments of the Greater London Council (General Powers) Act 1984I1

In section 10 of the Greater London Council (General Powers) Act 1984 (buildings to which Part 4 of Act applies)f1, in subsection (2)—

(a)

in paragraph (c), omit “, or an independent hospital,”;

(b)

after paragraph (c) insert—

“(ca)

used for the provision of any of the services listed in subsection (3);”; and

(c)

after subsection (2), add—

“(3)

The services referred to in paragraph (ca) of subsection (2) are as follows—

(a)

medical treatment under anaesthesia or intravenously administered sedation;

(b)

dental treatment under general anaesthesia;

(c)

obstetric services and, in connection with childbirth, medical services;

(d)

termination of pregnancies;

(e)

cosmetic surgery, other than—

(i)

ear and body piercing;

(ii)

tattooing;

(iii)

the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; or

(iv)

the removal of hair roots or small blemishes on the skin by the application of heat using an electric current.”.

7Amendments of the Children Act 1989I1

(1)

The Children Act 1989f1 is amended as follows.

(2)

In section 62 (duties of local authorities)f2, in subsection (6)(c), after “Care Standards Act 2000” insert “or section 20 of the Health and Social Care Act 2008”.

(3)

In section 105 (interpretation)f3, in subsection (1), for the definition of “independent hospital” substitute—

  • ““independent hospital”—

    1. (a)

      in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section; and

    2. (b)

      in relation to Wales, has the same meaning as in the Care Standards Act 2000;”.

8Amendment of the National Health Service and Community Care Act 1990I1

In section 48 of the National Health Service and Community Care Act 1990 (inspection of premises used for provision of community care services)f1—

(a)

in subsection (1), for “(other than premises in respect of which any person is registered under Part II of the Care Standards Act 2000)” substitute “(other than regulated premises)”; and

(b)

after subsection (1), insert—

“(1A)

In subsection (1) “regulated premises” means—

(a)

in relation to England, premises used for the carrying on of a regulated activity within the meaning of Part 1 of the Health and Social Care Act 2008 by a person who is registered under Chapter 2 of that Part in respect of the activity; and

(b)

in relation to Wales, premises in respect of which a person is registered under Part 2 of the Care Standards Act 2000.”.

9Amendment of the Local Government Finance Act 1992I1

In Schedule 1 to the Local Government Finance Act 1992 (persons disregarded for purposes

of discount)f1, in paragraph 7 (patients in homes in England and Wales), in sub-paragraph (2), for the definition of “independent hospital” substitute—

  • ““independent hospital”—

    1. (a)

      in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section; and

    2. (b)

      in relation to Wales, has the same meaning as in the Care Standards Act 2000.”.

10Amendments of the Powers of Criminal Courts (Sentencing) Act 2000F1C1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11Amendment of the Community Care (Delayed Discharges etc) Act 2003I1

In section 12 of the Community Care (Delayed Discharges etc) Act 2003 (interpretation)f1, for the definition of “independent hospital” substitute—

  • ““independent hospital”—

    1. (a)

      in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section; and

    2. (b)

      in relation to Wales, has the same meaning as in the Care Standards Act 2000;”.

12Amendments of the Licensing Act 2003I1

In section 16 of the Licensing Act 2003 (applicant for premises licence)f1—

(a)

in subsection (1)—

(i)

in paragraph (g), after “hospital” insert “in Wales”, and

(ii)

after paragraph (g) insert—

“(ga)

a person who is registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the carrying on of a regulated activity (within the meaning of that Part) in an independent hospital in England,”;

(b)

in subsection (3), for the definition of “independent hospital” substitute—

  • ““independent hospital”—

    1. (a)

      in relation to England, means—

      1. (i)

        a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section, or

      2. (ii)

        any other establishment in which any of the services listed in subsection (4) are provided and which is not a health service hospital as so defined; and

    2. (b)

      in relation to Wales, has the same meaning as in the Care Standards Act 2000;”; and

(c)

after subsection (3) add—

“(4)

The services referred to in paragraph (a)(ii) of the definition of “independent hospital” are as follows—

(a)

medical treatment under anaesthesia or intravenously administered sedation;

(b)

dental treatment under general anaesthesia;

(c)

obstetric services and, in connection with childbirth, medical services;

(d)

termination of pregnancies;

(e)

cosmetic surgery, other than—

(i)

ear and body piercing;

(ii)

tattooing;

(iii)

the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; or

(iv)

the removal of hair roots or small blemishes on the skin by the application of heat using an electric current.”.

13Amendments of the Sexual Offences Act 2003I1

(1)

The Sexual Offences Act 2003f1 is amended as follows.

(2)

In section 21 (positions of trust)f2, in subsection (4)(b), before “an independent clinic” insert “in Wales,”.

(3)

In section 22 (positions of trust: interpretation)f3—

(a)

in subsection (5)—

(i)

for the definition of “hospital” substitute—

  • ““hospital” means—

    1. (a)

      a hospital as defined by section 275 of the National Health Service Act 2006, or section 206 of the National Health Service (Wales) Act 2006; or

    2. (b)

      any other establishment—

      1. (i)

        in England, in which any of the services listed in subsection (6) are provided; and

      2. (ii)

        in Wales, which is a hospital within the meaning given by section 2(3) of the Care Standards Act 2000;”, and

(ii)

in the definition of “independent clinic” omit “in relation to England and Wales,”; and

(b)

after subsection (5) add—

“(6)

The services referred to in paragraph (b)(i) of the definition of “hospital” are as follows—

(a)

medical treatment under anaesthesia or intravenously administered sedation;

(b)

dental treatment under general anaesthesia;

(c)

obstetric services and, in connection with childbirth, medical services;

(d)

termination of pregnancies;

(e)

cosmetic surgery, other than—

(i)

ear and body piercing;

(ii)

tattooing;

(iii)

the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; or

(iv)

the removal of hair roots or small blemishes on the skin by the application of heat using an electric current.”.

(4)

In section 42 (care workers: interpretation)f4—

(a)

for subsection (3) substitute—

“(3)

This subsection applies if B is a patient for whom services are provided—

(a)

by a National Health Service body or an independent medical agency;

(b)

in an independent hospital; or

(c)

in Wales, in an independent clinic,

and A has functions to perform for the body or agency or in the hospital or clinic in the course of employment which have brought A or are likely to bring A into regular face to face contact with B.”; and

(b)

in subsection (5), for the definitions of “independent clinic”, “independent hospital” and “independent medical agency” substitute—

  • ““independent clinic” has the meaning given by section 2 of the Care Standards Act 2000;

  • “independent hospital”—

    1. (a)

      in England, means—

      1. (i)

        a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section; or

      2. (ii)

        any other establishment in which any of the services listed in section 22(6) are provided and which is not a health service hospital as so defined; and

    2. (b)

      in Wales, has the meaning given by section 2 of the Care Standards Act 2000;

  • “independent medical agency” means an undertaking (not being an independent hospital, or in Wales an independent clinic) which consists of or includes the provision of services by medical practitioners;”; and

(c)

after subsection (5) add—

“(6)

In subsection (5), in the definition of “independent medical agency”, “undertaking” includes any business or profession and—

(a)

in relation to a public or local authority, includes the exercise of any functions of that authority; and

(b)

in relation to any other body of persons, whether corporate or unincorporate, includes any of the activities of that body.”.

14Amendments of the Criminal Justice Act 2003F1C1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15Amendment of the Health Protection Agency Act 2004I1

For section 10 of the Health Protection Agency Act 2004 (health care provision: standards)f1 substitute—

“10.
(1)

Insofar as any health care is provided by or for the Agency in England, the Agency is to be treated for the purposes of Chapters 3, 5 and 6 of Part 1 of the 2008 Act as a Primary Care Trust.

(2)

For the purposes of subsection (1), “health care” must be construed in accordance with section 97(1) and (2) of the 2008 Act.

(3)

Section 54 of the 2008 Act (studies as to economy, efficiency etc.) does not apply to the Agency.

(4)

Insofar as any health care is provided by or for the Agency in Wales, the Agency is to be treated for the purposes of Chapters 2 and 4 of Part 2 of the 2003 Act as a Welsh NHS body.

(5)

For the purposes of subsection (4), “health care” must be construed in accordance with section 45 of the 2003 Act.

(6)

The references in section 71 of the 2003 Act (reporting to the Secretary of State and regulator) to special measures are, in relation to the Agency, references to anything that may be done by the appropriate authority in pursuance of section 4 above.

(7)

This section does not extend to Scotland and Northern Ireland.

(8)

In this section—

  • “the 2003 Act” means the Health and Social Care (Community Health and Standards) Act 2003; and

  • “the 2008 Act” means the Health and Social Care Act 2008.”.

16Amendment of the Income Tax (Trading and Other Income) Act 2005I1

In section 726 of the Income Tax (Trading and Other Income) Act 2005 (meaning of “care provider”)f1, for subsection (2) substitute—

“(2)

A person meets the care registration requirement in relation to care provided in England if the person is registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the provision of care.

(2A)

A person meets the care registration requirement in relation to care provided in Wales if the person is registered under Part 2 of the Care Standards Act 2000 in respect of the provision of care.”.

17Amendments of the Mental Capacity Act 2005I1

(1)

The Mental Capacity Act 2005f1 is amended as follows.

(2)

In section 35 (appointment of independent mental capacity advocates)f2, in subsection (6)(b)(iii), after “Care Standards Act 2000 (c. 14)” insert “or Chapter 2 of Part 1 of the Health and Social Care Act 2008”.

(3)

In section 38 (provision of accommodation by NHS body)f3, for subsection (7) substitute—

“(7)

“Hospital” means—

(a)

in relation to England, a hospital as defined by section 275 of the National Health Service Act 2006; and

(b)

in relation to Wales, a health service hospital as defined by section 206 of the National Health Service (Wales) Act 2006 or an independent hospital as defined by section 2 of the Care Standards Act 2000.”.

(4)

In section 49 (power to call for reports), in subsection (7)(c), after “Care Standards Act 2000 (c. 14)” insert “or Chapter 2 of Part 1 of the Health and Social Care Act 2008”.

(5)

In section 58 (functions of the Public Guardian), in subsection (5)(c), after “Care Standards Act 2000 (c. 14)” insert “or Chapter 2 of Part 1 of the Health and Social Care Act 2008”.

(6)

In section 61 (Court of Protection Visitors), in subsection (5)(c), after “Care Standards Act 2000 (c. 14)” insert “or Chapter 2 of Part 1 of the Health and Social Care Act 2008”.

(7)

In Schedule A1 (hospital and care home residents: deprivation of liberty)f4—

(a)

in Part 9 (assessments under this Schedule), in paragraph 131(c), after “Care Standards Act 2000” insert “or Chapter 2 of Part 1 of the Health and Social Care Act 2008”; and

(b)

in Part 13 (interpretation)—

(i)

for paragraph 175(3) substitute—

“(3)

Independent hospital”—

(a)

in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not an NHS hospital; and

(b)

in relation to Wales, means a hospital as defined by section 2 of the Care Standards Act 2000 that is not an NHS hospital.”,

(ii)

for paragraph 177, substitute—

“177.

“Managing authority”, in relation to an independent hospital, means—

(a)

in relation to England, the person registered, or required to be registered, under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of regulated activities (within the meaning of that Part) carried on in the hospital, and

(b)

in relation to Wales, the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the hospital.”.

(iii)

for paragraph 179, substitute—

“179.

“Managing authority”, in relation to a care home, means—

(a)

in relation to England, the person registered, or required to be registered, under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the provision of residential accommodation, together with nursing or personal care, in the care home, and

(b)

in relation to Wales, the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the care home.”.

18Amendment of the Childcare Act 2006I1

In section 18 of the Childcare Act 2006 (meaning of childcare)f1, in subsection (8), in paragraph (b) omit “, “hospital”” and after paragraph (b) insert—

“(ba)

“hospital” has the meaning given by section 275 of the National Health Service Act 2006.”.

19Amendments of the Safeguarding Vulnerable Groups Act 2006I1

(1)

The Safeguarding Vulnerable Groups Act 2006f1 is amended as follows.

(2)

In section 6 (regulated activity providers)f2, in subsection (4)(b), for “arises under section 11 of the Care Standards Act 2000 (c. 14)”, substitute—

“arises—

(i)

in relation to England, under section 10 of the Health and Social Care Act 2008, or

(ii)

in relation to Wales, under section 11 of the Care Standards Act 2000.”.

F1(3)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)

In Schedule 7 (vetting information), in paragraph 6, in sub-paragraph (b), for “arises under section 11 of the Care Standards Act 2000 (c. 14) substitute—

“arises—

(i)

in relation to England, under section 10 of the Health and Social Care Act 2008, or

(ii)

in relation to Wales, under section 11 of the Care Standards Act 2000.”.

20Amendments of the Criminal Justice and Immigration Act 2008F1C1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signature

Signed by authority of the Secretary of State for Health.

Mike O’Brien

Minister of State,

Department of Health

15th March 2010

Explanatory note

(This note is not part of the Order)

This Order, which is to come into force on 1st October 2010, makes amendments to certain primary legislation consequential on the replacement, for England, of the registration of health and social care providers under Part 2 of the Care Standards Act 2000 with the new registration system under Part 1 of the Health and Social Care Act 2008.

A full impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.